COMMON STOCK PURCHASE WARRANT
NEITHER
THIS WARRANT NOR THE UNDERLYING COMMON STOCK OF INTERSTATE DATA USA, INC.
HAS
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY
STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN
MAY BE
OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT
TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL
FOR THE COMPANY, IS AVAILABLE.
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_______Shares
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FOR
VALUE
RECEIVED, Interstate Data USA, Inc., a Delaware corporation (the “Company”),
hereby certifies _________ (the “Warrantholder”) or the Warrantholder’s
permitted assigns are entitled to purchase from the Company, at any time
or from
time to time during the period commencing on September 28, 2007 (the
“Commencement Date”), and ending prior to 5:00 p.m. on September 28, 2010 (the
“Expiration Date”) ________ fully paid and non-assessable shares of common
stock, $0.001 par value, of the Company at a purchase price of $4.50 per
share
(the “Purchase Price”). (Hereinafter, (i) said common stock, together with any
other equity securities which may be issued by the Company with respect thereto
or in substitution therefor, is referred to as the “Common Stock,” (ii) the
shares of the Common Stock purchasable hereunder are referred to as the “Warrant
Shares,” (iii) the aggregate purchase price payable hereunder for the Warrant
Shares is referred to as the “Aggregate Warrant Price,” (iv) the price payable
hereunder for each of the Warrant Shares is referred to as the “Per Share
Warrant Price” and (v) this warrant and all warrants hereafter issued in
exchange or substitution for this warrant are referred to as the “Warrants”).
The Aggregate Warrant Price is not subject to adjustment. The Per Share Warrant
Price is subject to adjustment as hereinafter provided; in the event of any
such
adjustment, the number of Warrant Shares shall be adjusted by dividing the
Aggregate Warrant Price by the Per Share Warrant Price in effect immediately,
after such adjustment.
This
Warrant is issued pursuant to, and is subject to the terms and conditions
of,
the Subscription Agreement dated September 28, 2007 by and between the Company
and the Warrantholder (the "Subscription Agreement").
1. Exercise
of Warrant.
(a) This
Warrant may be exercised, in whole or in part at any time or in part from
time
to time, during the period commencing on the Commencement Date, and ending
at
5:00 p.m., Eastern time, on the Expiration Date, by the Warrantholder by
the
surrender of this Warrant (with the purchase form attached hereto as Exhibit
A)
at the address set forth in Subsection 9(a) hereof, together with proper
payment
of the Aggregate Warrant Price, or the proportionate part thereof if this
Warrant is exercised in part (the "Exercise Price"). Payment for the Warrant
Shares shall be made either (i) in accordance with paragraph 1(b) below,
or (ii)
by check payable to the order of the Company, in the amount of the Exercise
Price. If this Warrant is exercised in part, this Warrant must be exercised
for
a number of whole shares of the Common Stock, and the Warrantholder is entitled
to receive a new Warrant covering the number of Warrant Shares in respect
of
which this Warrant has not been exercised and setting forth the proportionate
part of the Aggregate Warrant Price applicable to such Warrant Shares. Upon
such
exercise and surrender of this Warrant, the Company will (i) issue a certificate
or certificates in the name of the Warrantholder for the number of whole
shares
of the Common Stock to which the Warrantholder shall be entitled and, if
this
Warrant is exercised in whole, pay, in lieu of any fractional share of the
Common Stock to which the Warrantholder shall be entitled, cash equal to
the
fair value of such fractional share (determined in such reasonable manner
as the
Board of Directors of the Company shall determine), and (ii) deliver the
other
securities and properties receivable upon the exercise of this Warrant, or
the
proportionate part thereof if this Warrant is exercised in part, pursuant
to the
provisions of this Warrant.
(b) If
the
Common Stock is registered under Section 12 of the Securities Exchange Act
of
1934, as amended, the Warrantholder may elect to pay all or part of the Exercise
Price by surrendering shares of Common Stock to the Company, including by
allowing the Company to deduct from the number of Warrant Shares deliverable
upon exercise of this Warrant, a number of such shares having an aggregate
Fair
Market Value, determined as of the day preceding the date of exercise of
this
Warrant, equal to the Aggregate Warrant Price. “Fair Market Value” per share of
Common Stock on any relevant date shall be determined in accordance with
the
following provisions:
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(i)
|
If
the Common Stock is at the time traded on the OTC Bulletin Board
or other
electronic quotation service, then the Fair Market Value shall
be the
closing selling price per share of Common Stock on the date in
question,
as such price is reported by the National Association of Securities
Dealers on the OTC Bulletin Board or other electronic quotation
service,
as the case may be. If there is no closing selling price for the
Common
Stock on the date in question, then the Fair Market Value shall
be the
closing selling price on the last preceding date for which such
quotation
exists; or
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(ii)
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If
the Common Stock is at the time listed on any Exchange, then the
Fair
Market Value shall be the closing selling price per share of Common
Stock
on the date in question on the Exchange determined by the Administrator
to
be the primary market for the Common Stock, as such price is officially
quoted in the composite tape of transactions on such Exchange.
If there is
no closing selling price for the Common Stock on the date in question,
then the Fair Market Value shall be the closing selling price on
the last
preceding date for which such quotation exists. "Exchange"
shall mean any organization, association, or group of persons,
whether
incorporated or unincorporated, which constitutes, maintains, or
provides
a market place or facilities for bringing together purchasers and
sellers
of securities or for otherwise performing with respect to securities
the
functions commonly performed by a stock exchange as that term is
generally
understood, and includes the market place and the market facilities
maintained by such exchange.
|
2. Reservation
of Warrant Shares.
So
long
as this Warrant is exercisable, the Company will at all times have authorized
and in reserve, and will keep available, solely for issuance or delivery
upon
the exercise of this Warrant, such number of shares of the Common Stock and
such
amount of other securities and properties as from time to time shall be
deliverable to the Warrantholder upon the exercise of this Warrant, free
and
clear of all restrictions on sale or transfer (except such as may be imposed
under applicable federal and state securities laws) and free and clear of
all
preemptive rights and all other rights to purchase securities of the
Company.
3. Fully
Paid Stock.
The
shares of the Common Stock issuable upon exercise of this Warrant in accordance
with the terms hereof shall, at the time of such issuance, be validly issued,
fully paid and non-assessable and not subject to preemptive rights or other
contractual rights to purchase securities of the Company.
4. Limited
Transferability.
This
Warrant and all rights hereunder are being issued in connection with the
issuance of the Warrant Shares and are transferable, in whole or in part,
only
with the prior written consent of the Company, in compliance with this Section
and with applicable law, upon surrender of this Warrant with a properly executed
assignment (in the form of Exhibit B or Exhibit C attached hereto) at the
principal office of the Company. By acceptance hereof, the Warrantholder
represents and warrants that this Warrant is being acquired, and all Warrant
Shares to be purchased upon the exercise of this Warrant will be acquired,
by
the Warrantholder for investment, solely for the account of such Warrantholder
and not with a view to the fractionalization or distribution thereof and
may not
be sold or transferred except in accordance with the applicable provisions
of
the Securities Act of 1933, as amended (the "Securities Act"), and the rules
and
regulations of the Securities and Exchange Commission promulgated thereunder,
and the Warrantholder agrees that neither this Warrant nor any of the Warrant
Shares may be sold or transferred except pursuant to an effective registration
statement under the Act or pursuant to an opinion, in form and substance
reasonably acceptable to the Company’s counsel, that registration under the Act
is not required in connection with such sale or transfer. The Warrantholder
shall deliver written notice of any transfer of this Warrant permitted
hereunder, in the form of Exhibit B hereto, to the Company within three (3)
business days after such Warrant is made in the Company's warrant register,
the
Company may treat the registered holder of this Warrant as the absolute owner
hereof for all purposes.
-2-
Each
certificate or other instrument for any shares of Common Stock issued upon
the
exercise of this Warrant shall bear the following legend:
THESE
SECURITIES MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL
TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY.
5. Anti
Dilution Adjustments.
(a) If,
at
any time or from time to time after the date of this Warrant, the Company
shall
(i) pay a dividend or make a distribution on its capital stock in shares
of
Common Stock, (ii) subdivide its outstanding shares of Common Stock into
a
greater number of shares, (iii) combine its outstanding shares of Common
Stock
into a smaller number of shares or (iv) issue by reclassification of its
Common
Stock any shares of capital stock of the Company, the Per Share Warrant Price
in
effect immediately prior to such action shall be adjusted so that the
Warrantholder of any Warrant thereafter exercised shall be entitled to receive
the number of shares of Common Stock or other capital stock of the Company
which
he would have owned or been entitled to receive immediately following the
happening of any of the events described above had such Warrant been exercised
immediately prior thereto. An adjustment made pursuant to this Section 5
shall
become effective immediately after the record date in the case of a dividend
or
distribution and shall become effective immediately after the effective date
in
the case of a subdivision, combination or classification. If, as a result
of an
adjustment made pursuant to this Section 5, the Warrantholder of any Warrant
thereafter surrendered for exercise shall become entitled to receive shares
of
two (2) or more classes of capital stock or shares of Common Stock and other
capital stock of the Company, the Board of Directors (whose determination
shall
be conclusive and shall be described in a written notice to the Warrantholder
of
any Warrant promptly after such adjustment) shall determine the allocation
of
the adjusted Per Share Warrant Price between or among shares of such classes
or
capital stock or shares of Common Stock and other capital stock.
(b) If,
at
any time or from time to time after the date of this Warrant, the Company
shall
consolidate or merge with or into another corporation (where the Company
is not
the surviving corporation or where there is a change in or distribution with
respect to the Common Stock of the Company), or sell, transfer or otherwise
dispose of its property, assets or business to another corporation and, pursuant
to the terms of such reorganization, reclassification, merger, consolidation
or
disposition of assets, shares of common stock of the successor or acquiring
corporation, or any cash, shares of stock or other securities or property
of any
nature whatsoever (excluding cash but including warrants or other subscription
or purchase rights) in addition to or in lieu of common stock of the successor
or acquiring corporation ("Other Property"), are to be received by or
distributed to the holders of Common Stock of the Company, then the
Warrantholder shall have the right thereafter to receive the number of shares
of
common stock of the successor or acquiring corporation, or of the Company
if it
is the surviving corporation, and Other Property receivable upon or as a
result
of such reorganization, reclassification, merger, consolidation or disposition
of assets by a holder of Common Stock equal to the number of shares of Common
Stock for which this Warrant is exercisable immediately prior to such
event.
-3-
6. Callable
by the Company.
This
Warrant may be called at any time by the Company if (a) a registration statement
under the Securities Act is effective during the entire Exercise Period (defined
hereunder) which follows the Warrantholder's receipt of the Notice (defined
hereunder) with respect to the Warrant Shares and (b) at least one of the
following events occur (each, a “Call Event”) (i) the closing or last sale
price, if the Common Stock is traded on an Exchange, or the average of the
closing bid and ask prices, if the Company’s common stock is not traded on an
Exchange, of the Common Stock is equal to or greater than the callable price
of
$13.50 for a period of twenty (20) consecutive trading days or (ii) (1)
any
company or individual acquires direct or indirect ownership or control of
any
voting shares of the Company if, after such acquisition, such company or
individual will directly or indirectly own or control more than 50% of the
voting shares of the Company; (2) any company or individual acquires a majority
of the assets of the Company; or (3) any company merges or consolidates with
the
Company, which results in the members
of the Company’s Board of Directors in office immediately prior to such
transaction or event constituting less than a majority of such Board of
Directors thereafter. At any time after a Call Event occurs, if the Company
elects to exercise its rights hereunder, the Company will provide notice
(“Notice”) to the Warrantholder. The
Warrantholder must
exercise, in whole or in part, the Warrant within thirty (30) days of
receipt of the Notice (“Exercise Period”). If the Warrant is exercised, the
Warrantholder must deliver to the Company at its principal offices a check
or
wire transfer payable to the order of the Company, in an amount equal to
the
product of the Per Share Warrant Price multiplied
by
the
number of Warrant Shares exercised. If any Warrant Shares are not exercised
on
or before the expiration of the Exercise Period, then the Warrant will expire.
7. Loss,
etc. of Warrant.
Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant, and of indemnity reasonably satisfactory to
the
Company, if lost, stolen or destroyed, and upon surrender and cancellation
of
this Warrant, if mutilated, and upon reimbursement of the Company’s reasonable
incidental expenses, the Company shall execute and deliver to the Warrantholder
a new Warrant of like date, tenor and denomination.
8. Warrantholder
Not Shareholder.
This
Warrant does not confer upon the Warrantholder any right to vote or to consent
to or receive notice as a shareholder of the Company, or otherwise in respect
of
any matters whatsoever, or any other rights or liabilities as a
shareholder.
9. Communication.
No
notice
or other communication under this Warrant shall be effective unless, such
notice
or other communication is in writing and is mailed by first-class mail, postage
prepaid, addressed to:
|
(a)
|
the
Company at 0000 Xxxx Xxxx Xxxxx, #0000, Xxxxxxx, Xxxxx 00000, or
such
other address as the Company has designated in writing to the
Warrantholder; or
|
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(b)
|
the
Warrantholder at his address on the books and records of the Company,
or
as the Warrantholder has designated in writing to the
Company.
|
-4-
10. Headings.
The
headings of this Warrant have been inserted as a matter of convenience and
shall
not affect the construction hereof.
11. Amendment
or Waiver.
Any
term
of this Warrant may be amended or waived upon written consent of the Company
and
a majority of the Warrantholders.
12. Governing
Law; Jurisdiction; Venue.
This
Warrant shall be governed by and construed in accordance with the laws of
the
State of Delaware without giving effect to the principles of conflicts of
law
thereof. Any judicial proceeding involving any dispute, controversy or claim
arising out of or relating to this Warrant may be brought in a court located
in
the State of Texas, and each of the Company and the Warrantholder (i)
unconditionally accepts the nonexclusive jurisdiction of such courts and
any
related appellate court and irrevocably agrees to be bound by any judgment
rendered thereby, (ii) irrevocably waives any objection it may now or hereafter
have as to the venue of any such proceeding brought in such a court or that
such
a court is an inconvenient forum.
-5-
IN
WITNESS THEREOF, Interstate Data USA, Inc. has caused this Warrant to be
signed
by an executive officer as of this 28th day of September, 2007.
| INTERSTATE DATA USA, INC. | ||
| |
|
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Xxxxx Xxxxxxxxx
President
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-6-
EXHIBIT
A
ELECTION
TO PURCHASE
The
undersigned, ____________________________________________, pursuant to the
provisions of the foregoing Warrant, hereby irrevocably elects to exercise
said
Warant by the purchase of ______________ shares of the Common Stock of
Interstate Data USA, Inc., covered by said Warrant, and makes payment therefore
in full at the Per Share Warrant Price provided by said Warrant.
| Dated:_______________________________ | Signature:___________________________________ | |
| Address:____________________________________ |
-7-
EXHIBIT
B
ASSIGNMENT
FOR
VALUE RECEIVED, _____________________________________
hereby sells, assigns and transfer unto _____________ the foregoing Warrant
and
all rights evidenced thereby, and does irrevocably constitute and appoint
______________, attorney, to transfer said Warrant on the books of
_______________________.
| Dated:_______________________________ | Signature:___________________________________ | |
| Address:____________________________________ |
-8-
EXHIBIT
C
PARTIAL
ASSIGNMENT
FOR
VALUE RECEIVED,
_____________________________________________ hereby assigns and transfers
unto
_______________ the right to purchase __________ shares of the Common Stock
of
Interstate Data USA, Inc., by the foregoing Warrant, and a proportionate
part of
said Warrant and the rights evidenced hereby, and does irrevocably constitute
and appoint ______________, attorney, to transfer that part of said Warrant
on
the books of Interstate Data USA, Inc.
| Dated:_______________________________ | Signature:___________________________________ | |
| Address:____________________________________ |
-9-
